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The Obama administration's amen chorus must be getting nervous about the upcoming ruling on Halbig v. Burwell by a three-judge panel of the D.C. Circuit. Today, Washington & Lee University law professor Timothy Jost, a widely recognized expert on the Patient Protection and Affordable Care Act, took to the Washington Post to make sure everybody knows this lawsuit is just a bunch of bunk:

The Affordable Care Act was meant to “provide affordable . . . coverage choices for all Americans.” A key section says, “Each state shall . . . establish an . . . Exchange,” but another section provides that if a state “elects” not to establish the “required Exchange,” the secretary of health and human services must “establish and operate such Exchange.” These sections both require states to establish exchanges and allow them not to do so.

Congress gave the IRS the responsibility to resolve such contradictions, and the IRS adopted the only reasonable approach. If a state does not create the “required Exchange,” HHS steps into its shoes and sets up “such Exchange.” The law, in other words, requires the federal government to create the “Exchange established by the state,” with the same authorities and responsibilities as state exchanges, including offering premium tax credits.

I don't know where Jost sees a contradiction. But if I understand him, when the federal government establishes an Exchange, it was actually, legally speaking, "established by the State," even though the law doesn't ever say that. Of course. What could be clearer? Jost predicts that Halbig will fail because "the entire D.C. Circuit is likely to reverse the three-judge panel" if that panel rules against the government. I guess it wouldn't make much sense to write an entire oped about it unless that's what he's expecting.

Unfortunately, Jost's oped does not inform readers of his long and complicated relationship with these provisions of the PPACA, the Halbig cases, and weighing the merits or predicting the outcome of PPACA litigation generally.

In his oped, Jost pretends the idea of withholding subsidies in states that decline to establish an Exchange is some kind of far-out, wacky idea. He neglects to mention that he himself proposed the idea back in 2009, writing that Congress could "offer[] tax subsidies for insurance only in states that complied with federal requirements (as it has done with respect to tax subsidies for health savings accounts)." He liked the idea of using Exchange subsidies as a carrot so much, he even proposed Congress could encourage states to create a "public option" by withholding Exchange subsidies in states that declined: “Tax credits could be offered to subsidize the purchase of insurance, but only in states that implemented a public program.” Jost ignores the many proposals circulating in Congress in 2009 that adopted this idea by conditioning subsidies on states establishing Exchanges or taking other steps (read about them here), and elides the fact that he himself has written that the PPACA "clearly" adopted his now-orphaned idea.

Jost's track record of predicting how courts will rule on PPACA litigation also leaves something to be desired. He was similarlydismissive of the PPACA challenge filed by state attorneys general in 2010. He wrote that “states do not have standing to challenge the constitutionality of a federal law”; even if the states did have standing “there are serious questions of ripeness, as the law does not go into effect until 2014”; “the Tax Injunction Act [sic] would bar the relief the states seek”; and “states are also unlikely to prevail [on the merits] unless the courts abandon decades of established constitutional law.” He called on federal judges to “Sanction the 18 State AGs” because they brought the case “solely for political purposes” and therefore “should have to bear personally the cost of defending this litigation that they are imposing on federal taxpayers.”

Needless to say, a majority of the Supreme Court disagreed with each of these arguments, either implicitly or explicitly, and it wasn’t just the Republican appointees. Five justices found the individual mandate to be an unconstitutional use of the commerce power. Seven justices, including Stephen Breyer and Elena Kagan, went further, implicitly rejecting Jost’s arguments about state standing, ripeness, and what constitutes “decades of established constitutional law,” when they sided with the states on the Medicaid mandate. All nine justices rejected his argument about the Anti-Injunction Act. So much for those arguments being frivolous.

Jost’s track record with respect to the Halbig cases is no better. As my sometime coauthor Jonathan Adler and I explain at the Health Affairs blog:

In 2011, Jost wrote, “There is no coherent policy reason why Congress would have refused premium tax credits to the citizens of states that ended up with a federal exchange.” When we brought to his attention that in 2009, he himself had proposed, “offering tax subsidies for insurance only in states that complied with federal requirements” as a way for Congress to get states to implement either Exchanges or a public option without “commandeering” the states, he rediscovered his own “coherent policy reason.”

In 2011, Jost wrote, it “is obvious to anyone who understands the ACA” that this requirement is “a drafting error.” He later backtracked, “I agree with Cannon and Adler that the courts are unlikely to find the ‘established by the state’ language a ‘scrivener’s error.’”

Jost claimed that no one – especially not a state – could establish standing to challenge the disputed tax credits. A federal court disagreed, ruling Oklahoma had standing in its capacity as an employer.

Jost then claimed that only employers could challenge the tax credits, and even they could not do so before 2015. Federal courts disagreed, ruling that individualtaxpayers also had standing.

The most interesting thing about Jost's Washington Post oped is that he wrote it at all. As for his predictions, take them with a grain of salt.